YAGAMMAL Vs. ARULAYEE AMMAL

JUDGEMENT

(1.) The main question in the Civil Revision Petition is, is a suit liable to be dismissed for default after the passing of the preliminary decree? The plaintiff filed this suit for partition and in 1923 obtained a decree directing certain items to be partitioned. From this judgment, she filed an appeal and the Appellate Court varied the decree in her favour by directing partition of some additional items. When the case went back to the Trial Court, it fixed a date for the appearance of parties. Neither the plaintiff nor the defendant having appeared on the day fixed, the Court made an order on the 9 of May, 1925, dismissing the suit for default. It is this order that is impeached in the revision petition before us. On the merits there can be no question that this order cannot be supported. As pointed out by the Privy Council After a decree has once been made in a suit, the suit cannot be dismissed unless the decree is reversed on appeal. The parties have, on the making of the decree, acquired rights or incurred liabilities which are fixed, unless or until the decree is varied or set aside." (Lachmi Narain Marwari V/s. Bakmakund Marwvari (1924) L.R.51 I.A. 321: I.L.R. 4 Pat. 61: 47 M.LJ. 441 at 446 (P.C.)).

(2.) A similar view was taken by the Allahabad High Court in an earlier case. See Masum-un- nissa V/s. Latifan (1910) I.L.R. 32 A. 319.

(3.) But then a preliminary objection is raised that this revision petition does not lie. The argument may be thus stated. The plaintiff applied to the Lower Court for the restoration of the suit under Order 9, Rule 9, Civil Procedure Code. That application was dismissed by an order, dated 16 March, 1926. The respondent contends that an appeal lies from the last mentioned order under Order 43, Rule 1(c) and that the High Court ought not to exercise its revisional powers when the party aggrieved has a remedy by way of appeal. The answer is simple. The order dismissing the suit cannot be treated as one made under the provisions of Order 9, Civil Procedure Code. That is the effect of the decision of the Privy Council to which we have referred. It follows necessarily that, although the plaintiff's application to restore the suit purports to have been made under Order 9, it is not in fact governed by the provisions of that chapter at all..:, It must be deemed to be an application under Section 151 for the exercise of the Court's inherent powers. The preliminary objection thus fails.